Data Preservation – Page 83 – Electronic Discovery Law

Sampson v. City of Cambridge, 251 F.R.D. 172 (D. Md. 2008)

Dec 01 2008

Key Insight: Where defendant’s failure to preserve emails was merely negligent and plaintiff did not establish that lost evidence would have supported her claims, court denied plaintiff?s motion for default judgment or adverse inference instruction as spoliation sanction; however, since second forensic examination of hard drive was necessitated solely by defendant’s misstatement, court ordered defendant to cover its cost

Nature of Case: Race discrimination and discrimination under ADA

Electronic Data Involved: Emails, hard drive

Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008)

Dec 01 2008

Key Insight: Adverse inference instruction appropriate for two forms of spoliation: (1) individual defendant?s intentional disposal of USB Thumb-Drive containing plaintiff’s proprietary information to prevent plaintiff from “making an issue” of it, and (2) alteration or loss of data through defendants’ mere continued use of laptop and through installation and un-installation of various programs; default judgment not warranted since plaintiff had considerable evidence available to support its argument that defendants misappropriated its confidential information

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop hard drive, USB Thumb-Drive

Dynamic Sports Nutrition, Inc. v. Roberts, 2008 WL 2775007 (S.D. Tex. July 14, 2008)

Dec 01 2008

Key Insight: Finding substantial likelihood that plaintiff would prevail on its claims, that plaintiff was suffering ?immediate, irreparable, imminent harm? for which there was no adequate remedy at law, that defendants had posted confidential information about plaintiff?s products on publicly accessible blogs and websites, that individual defendant had misappropriated laptop belonging to plaintiff after his termination from plaintiff and had failed to comply with aspects of the court’s Temporary Restraining Order, court entered preliminary injunction forbidding defendants from, among other things, deleting relevant ESI and requiring defendants to return laptop to plaintiff?s counsel and to preserve all evidence of any disclosure or dissemination of plaintiff?s confidential information

Nature of Case: Misappropriation of trade secrets, breach of fiduciary duty, conversion and and violations of Computer Fraud and Abuse Act

Electronic Data Involved: Laptop computer and confidential business information

In re Rosenthal, 2008 WL 983702 (S.D. Tex. Mar. 28, 2008)

Dec 01 2008

Key Insight: Finding that District Attorney?s admitted deletion of more than 2,500 emails sought by subpoena constituted ?unexcused, egregious conduct,? court found him in contempt of court and imposed $18,900 in sanctions (representing attorneys? fees); court further found that actions of attorney representing DA in the proceedings were ?unprincipled and dilatory, at best, constituting a deliberate indifference to the Court’s Orders and subpoena,? held him in contempt of court, and ordered that $5,000 of the $18,900 in sanctions awarded against DA was jointly and severally awarded against his attorney

Nature of Case: Civil rights suit against Harris County, Texas, the Harris County Sheriff and several Harris County deputies

Electronic Data Involved: Deleted emails of the District Attorney of Harris County, Texas

Anaheim Gardens v. United States, 2008 WL 2043243 (Fed. Cl. Feb. 29, 2008)

Dec 01 2008

Key Insight: Court granted motion brought by plaintiffs pursuant to Rule 37(a)(2)(B), Rules of the United States Court of Federal Claims, and issued order compelling defendant to produce witness or witnesses who could fully testify about document retention practices and policies of HUD and actual steps taken to produce documents

Nature of Case: Owners of low-income housing who had received mortgage insurance from Department of Housing and Urban Development (HUD) brought action alleging regulatory taking

Electronic Data Involved: Document retention policies

UMG Recordings, Inc. v. Doe, 2008 WL 2949427 (N.D. Cal. July 30, 2008)

Dec 01 2008

Key Insight: Where plaintiffs made prima facie showing of infringement, there was no other way to identify Doe defendant, and there was risk that ISP would destroy its logs prior to Rule 26(f) conference, court found that need for expedited discovery outweighed prejudice to defendant and granted plaintiffs? motion for leave to take immediate discovery

Nature of Case: Copyright infringement through use of peer-to-peer (“P2P”) networking

Electronic Data Involved: ISP logs; documents and ESI sufficient to identify defendant’s true name, current and permanent addresses and telephone numbers, email addresses, and Media Access Control addresses

Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., 2008 WL 3261095 (N.D. Tex. Aug. 8, 2008)

Dec 01 2008

Key Insight: For plaintiff?s and its principals? egregious discovery abuses and bad faith conduct, including intentional spoliation of ESI and willful deception and concealment, magistrate judge set out findings of fact and conclusions of law and recommended sanctions in form of adverse inference instruction and monetary sanctions representing all of defendants? fees and costs incurred in connection with sanctions motion; district court overruled plaintiff’s objections and adopted magistrate judge?s rulings

Nature of Case: Breach of fiduciary duty, breach of contract, RICO violations, negligence, gross negligence and injunctive relief

Electronic Data Involved: Hard drives, DVD, various ESI

E.E.O.C. v. Beauty Enters., Inc., 2008 WL 3359252 (D. Conn. Aug. 8, 2008)

Dec 01 2008

Key Insight: Where plaintiffs argued that several BEI supervisors had testified they had not been instructed to preserve documents related to case, court agreed that defense counsel?s litigation hold letter was privileged and ordered BEI to disclose date on which letter was sent and names of recipients

Nature of Case: Employment discrimination

Electronic Data Involved: Letter from BEI’s counsel to BEI supervisors advising them to implement a litigation hold

Reino de Espana v. Am. Bureau of Shipping, 2008 WL 3851957 (S.D.N.Y. Aug. 18, 2008)

Dec 01 2008

Key Insight: District court overruled Spain’s objections to Magistrate Judge?s various orders of November 3, 2006, January 25, 2007 and June 6, 2007

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email

Buckley v. Mukasey, 538 F.3d 306 (4th Cir. 2008)

Dec 01 2008

Key Insight: Remanding case for new trial on other grounds, appellate court noted that trial court may have committed an error of law, in analyzing plaintiff?s request for adverse inference instruction as sanction for government?s failure to preserve email, by equating the intentional conduct necessary for such an instruction with bad faith; appellate court would leave it to trial court to consider request for adverse inference instruction on remand, but observed that (even absent a court order) the duty to preserve material evidence arises not only during litigation but also extends to that period before litigation when party reasonably should know that evidence may be relevant to anticipated litigation

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Email

Tag:Data Preservation